Where a police officer who has investigated the object of a crime of invalidation of a public document or a criminal case arbitrarily transfers a written statement kept by him/her to the defendant under his/her own judgment, whether such written statement constitutes a public document (negative)

The crime of invalidation of public documents stipulated in Article 141(1) of the Criminal Act refers to documents or other things used or kept for the purpose of use by public offices without asking public documents or private documents. If a police officer who investigated a criminal case arbitrarily transferred to the defendant a written statement kept by him/her at his/her own discretion, the police officer, who is the person in charge of custody of the said written statement, shall be deemed to have disposed of without using it by public offices, and thus, the said written statement shall be deemed to have lost its nature as a public document because it is not a document used or kept by public offices.

Supreme Court Decision 82Do368 delivered on October 12, 1982 (Gong1982, 1117) Supreme Court Decision 86Do2799 delivered on April 14, 1987 (Gong1987, 841 delivered on November 10, 1995) 95Do1395 delivered on November 10, 1995 (Gong195Ha, 3965)

A

Defendant

Seoul District Court Decision 98No6257 delivered on November 11, 1998

The judgment of the court below is reversed, and the case is remanded to the Seoul District Court Panel Division.

The grounds of appeal are examined.

1. The court below found the defendant guilty on the ground that the above F has no justifiable grounds to believe that the defendant's act was not a crime, on the ground that the above F, arbitrarily delivered E's written statement to the defendant, and confirmed it to the originator, and made it possible to believe that the defendant's act was not a crime, on the ground that the former F was not committed, on June 28, 1997, on the part of the assistant principal of Chigh School in Seoul Special Metropolitan City, Nowon-gu, and the former D's teacher at the above school was investigated by the defendant due to the suspicion of defamation.

2. Examining the evidence such as the statement and the statement made by the Defendant and F, the police officer F, upon receiving a written statement from the witness E while directly investigating the above criminal complaint case and keeping it without being bound by the investigation records, was forced by the Defendant, the complainant, to leave the school as if he drafted the written statement. E, upon receiving the request of “I would not want to return the written statement.” There is no important content of E’s written statement, and there is no difference between the other teachers’ statements and other teachers’ statements, and thus, it is difficult to view that E would not interfere with the investigation even if there is no difference between E’s written statement and E’s written statement. Accordingly, the Defendant took the above written statement and displayed it to E, and thereby having reached it.

The crime of invalidation of public documents stipulated in Article 141 (1) of the Criminal Act refers to documents or other things used or kept for the purpose of use by public offices without asking public documents or private documents. If a police officer who has investigated a criminal case arbitrarily transferred a written statement kept by him/her to the defendant at his/her own discretion, the police officer, who is the person in charge of custody of the above written statement, shall be deemed to have disposed of without using it by the public office. Thus, the above written statement shall no longer be used or kept by the public office, and it shall be deemed to have lost its nature as a public document.

Nevertheless, the judgment of the court below which found the defendant guilty of the above facts charged under the judgment that the above statement that the defendant received from F still constitutes a public document is erroneous in the misapprehension of legal principles as to the crime of invalidation of public documents, which affected the conclusion of the judgment. Thus, the ground of appeal pointing this out has merit.

3. Therefore, the court below cannot maintain measures which found guilty of the part of the judgment below as to the crime of invalidation of public documents, and since the court below sentenced the crime of assault and the crime of assault as stated in the above crime as concurrent crimes under the former part of Article 37 of the Criminal Act, the part of the crime of assault and the crime of assault cannot be reversed together

Therefore, the judgment of the court below is entirely reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Chocheon-sung (Presiding Justice)